June 1, 2013

A helpful reader alerted me to this notable local article concerning a notable jury sentencing outcome emerging this past week from the Texas state courts. The piece is headlined "Theft of ribs gets five-time felon 50 years in prison," and here are the details:

All Willie Smith Ward wanted was his baby-back ribs, but it cost him 50 years in prison.

His problems started when he tucked a large rack under his shirt and tried to leave the H-E-B store at 1102 Speight Ave. without paying in September 2011.

A jury in Waco’s 19th State District Court also didn’t like the 43-year-old Ward’s previous five felony and four misdemeanor convictions and recommended that Ward be sentenced to 50 years in prison as a habitual criminal. Jurors took two minutes Wednesday to convict Ward on robbery charges and about an hour to decide his punishment.

Ward’s theft of the $35 rack of pork ribs turned into a robbery when he threatened a grocery store employee who saw the huge bulge under Ward’s shirt and tried to stop him in the parking lot.

“This verdict shows that the citizens of this county will not tolerate a continued disrespect and disregard for other people and their property,” said Assistant District Attorney J.R. Vicha, who prosecuted Ward with Chris Bullajian. “People who choose to do so will be dealt with seriously and appropriately.”

The employee testified that he asked Ward what was under the shirt and the slab of ribs fell to the ground. He asked Ward what else he was hiding and Ward said, “I got a knife.”
The employee told Ward, “Now you just turned a ticket into a serious crime.”

“If you don’t leave me alone, I’ll show you what I got,” Ward said, according to the employee’s testimony. Ward then ran off.

Ward has previous felony convictions for burglary, attempted
robbery, aggravated assault, leaving the scene of an accident and possession of cocaine and four misdemeanor convictions, including two thefts.

He will have to serve at least a quarter of his sentence before he becomes eligible for parole.
A court official said Ward rejected a 20-year prison sentence in a plea offer from prosecutors before trial.

Though I suspect this sentencing story could make a lot of news as an example of extreme sentencing, the last three sentences of the story confirm my instinct that this headline-making case was actually resolved in a relatively fair and effective manner. Let me explain.

For starters, it appears that Willie Smith Ward (aka the "Baby Back Bandit") will only be serving about 12 years in prison for sure, at which point he will be eligible for parole. And given his considerable and serious criminal history as well as the threats of violence involved in this latest crime, a prison term requiring at least a decade behind bars does not seems that extreme and does seem likely to increase public safety.

Second, for a crime in which it would appear guilt was not in doubt, the local prosecutor was here prepared to give the Baby Back Bandit a huge sentencing discount if he pleaded guilty. This seems to mean that, simply by accepting responsibility for his latest crime, the Baby Back Bandit would have receive a much lower sentence which would have made him parole eligible in only five years.

Last but not least, unlike in the federal sentencing system with mandatory minimum sentencing terms that often enable prosecutors to select and mandate an extreme sentence for certain crimes without any jury or judicial review, in this case the prosecutor was only able to make a sentencing recommendation and it was up to a jury to decide if an extreme sentencing term was justified. The fact that local jurors decided to "throw the book" at the Baby Back Bandit (and actually spent some real time debating the sentence) reinforces my confidence that this sentencing outcome is not as extreme as it might seems upon first consideration.

"Amoral Numbers and Narcotics Sentencing"

The title of this post is the headline of this notable new article authored by Mark Osler and now available via SSRN. Here is the abstract:

Americans are fascinated with lists and rankings. Magazines catch the eye with covers promising “92 Cute Summer Looks,” college football fans anxiously await the release of pre-season rankings, and law schools have reshaped themselves in reaction to the rankings released by U.S. News and World Report. With each of these, though, the lists often do more to create a reality than to reflect one, with distinct negative effects. The same problem plagues federal narcotics sentencing, where rankings of the relative seriousness of crimes are embedded in sentencing guidelines and minimum sentences required by statutes, though they are rooted neither in empirical evidence nor a consistent theory of problem-solving.

"Convicted rapist asks Supreme Court for death penalty"

The title of this post is the headline of this notable piece from my local Columbus Dispatch. The story reinforces my views that (1) at least for some offenders, an LWOP sentences is worse that the death penalty, and (2) those who advocate strongly for a "right to die" for the terminally ill ought also think about whether and how some LWOP prisoners ought be permitted to exercise this right. Here are the details of the story:

Ricardo V. Dodson wants to die for his crimes.
Dodson, 50, a Franklin County man imprisoned since 1991, will ask the Ohio Supreme Court to issue an immediate order for his execution. The thing is Dodson is a rapist, not a murderer, and is not under a death sentence.

Nevertheless, Dodson said in a letter to The Dispatch, “I don’t want to stay alive just to die in prison...I would like to be put to death.” He said it would save taxpayers money by not having to pay for additional years of incarceration. Taxpayers pay the $65.77 daily cost, or about $24,000 a year, to feed, clothe, and provide medical care and security for each inmate.

So far, two courts have turned down Dodson’s death wish.
“Although appellant was convicted of very serious crimes, he was not convicted of aggravated murder and, therefore, the death penalty cannot, nor could it have been imposed at the time of sentencing,” a three-judge Franklin County Court of Appeals panel said.
Franklin County Prosecutor Ron O’Brien’s office opposed Dodson’s motion.

Dodson was convicted of four counts of rape, two counts of kidnapping and one count of attempted rape. His appeals and requests for parole have been rejected. He is serving an indefinite sentence of up to 130 years.

In a self-filed motion with Franklin Common Pleas Court, Dodson argued it is an unconstitutionally “cruel and unusual punishment” to keep him in imprisoned for the rest of his life. He said he suffers from excessive anxiety and depression, has been “pressured to enter homosexual situations in order to obtain small amounts of money,” is “angry all the time,” has been exposed to alcohol and drug addictions,” and has a loss of “morals and values.”

Among the reasons for everyone to be concerned about a story like this is the unfortunate modern reality concerning the only viable way for Dodson to now get the death penalty: murdering a guard or fellow prisoner. There are at least a few recorded examples of prisoners claiming that they murdered in prison in order to be able to get the death penalty, and Dodson will at some point discover that committing murder may now be the only way to "free" himself from his LWOP sentence.

I sincerely hope Ohio prison officials are aware of the unique risks now posed by this LWOP prisoner with a death wish. And I sincerely wish that Ohio laws might someday change in order to give prisoners like Dodson either the right to die and/or the opportunity to have at least some hope of earning an eventual release from prison.

May 31, 2013

Starting a summer series on the upper-level law school canon and my marijuana seminar

As revealed by this page on The Ohio State University Moritz College of Law website, I will have the unique honor and distinct pleasure of teaching a (ground-breaking?) law school seminar this coming Fall semester titled "Marijuana Law, Policy & Reform." As the title of this post reveals, I hope to discuss my ideas and efforts in this arena at great length in this and other on-line spaces in the months ahead.

As I pitched my faculty to approve this new course, I came to realize that I have a focused and strong perspective concerning why I am teaching this seminar, but only a diffuse and weak perspective concerning just how I am teaching this seminar. Thus, I thought it would be a useful summer project to do a lengthy series of posts here (and as a guest-blogger at PrawfsBlawg) explaining in detail why I am so excited about this new law school course and also revealing just how deeply uncertain I am about what to cover in this new course.

Following this kick-off post, I hope to do at least a few posts each week concerning the specific topic of my in-development marijuana seminar and the broader topic of what upper-level law school classes and seminars should aspire to achieve. I expect that I will do most of my posts in this series at PrawfsBlawg; these topics are likely to be of greater interest to an audience made up mostly of law professors rather than sentencing practitioners and researchers. But my main goal throughout this series will be to encourage robust commentary and feedback regarding the criminal justice perspectives and teaching plans I hope to be able to set forth throughout this series of posts. Consequently, I will not be surprised if I end up doing a lot of cross-posting both at PrawfsBlawg and here in this series, especially when I focus on the substance rather than the style of my new class on "Marijuana Law, Policy & Reform."

Speaking of substance, I will kick off this post seeking input on whether, how and how much time I ought to consider devoting in "Marijuana Law, Policy & Reform" to the legal and social history of alcohol Prohibition. Notably, public health scholars tell me that that use, abuse and addiction surrounding the drug of marijuana has more parallels to alcohol than to tobacco. My first thought has been that there are lots of important legal and social themes from the Prohibition era that merit significant coverage in my new class before we jump into modern marijuana law and policy. In fact, my tentative plan has been to devote two or three weeks at the start of my "Marijuana Law, Policy & Reform" seminar (e.g., about 20% of class time) to coverage of the legal and social history of alcohol Prohibition.

But when I conducted a brown-bag discussion with some members of my faculty this past week, I was intrigued by feedback urging me not to "waste" too much class time on this legal history topic. A few colleagues reasonably suggested that, because I am not a legal historian, it might be worse if students were taught "poor legal history" rather than no legal history. (My half-joking retort was that if poor legal history is good enough for Justice Scalia, it ought to be good enough for law students.) Others reasonably suggested that students might be put off if my "hot topic" seminar was going to start with weeks of looking back 100 years.

Though I very much welcome feedback on the specific issue of whether, when, and how much class time I should spend discussing Prohibition, I would also love to hear thoughts more broadly about whether, when, and how much law professors who are not legal historians should focus upper-level class time on legal history. In some ways, I think this issue spotlights a core concern in broader debates over what law schools should do now in the classroom: teaching legal history does not readily help today's law students become practice-ready; but I doubt George Santayana is the only one who thinks there can be lots of long-term negative consequences from being ignorant of important historical stories and lesson.

"Lawsuit alleges 'barbaric' conditions at Mississippi prison"

A Mississippi prison for severely mentally ill inmates is infested with rats that prisoners sell to one another as pets, two civil liberties groups claimed in a federal lawsuit filed on Thursday.

Inmates at the East Mississippi Correctional Facility near Meridian live under "barbaric" conditions, in filthy quarters without working lights or toilets, forcing them to defecate on Styrofoam trays or into trash bags, the American Civil Liberties Union and the Southern Poverty Law Center claimed in the lawsuit.

Beatings, rape, robbery and riots are commonplace, and inmates are denied access to medication and psychiatric care, the 83-page complaint stated.
The privately run prison "is an extremely dangerous facility operating in a perpetual state of crisis" and inmates' human rights are violated daily, according to the groups. Some prisoners set fires in a desperate attempt to get medical attention in emergencies, the lawsuit said.

"I've been in prisons all around the country, and this is the worst I've ever seen," said Gabriel B. Eber, staff counsel for the ACLU's National Prison Project.

The Mississippi Department of Corrections, whose top officials were named as defendants, declined to comment on the allegations in the lawsuit, said department spokeswoman Grace Fisher.

The class action lawsuit says state prison officials have been aware of the conditions at the facility for years but have not remedied the problems.
In one instance, according to the lawsuit, an otherwise healthy inmate had to have a testicle removed after prison officials repeatedly denied his request for medical help when it swelled to the size of a softball from cancer.

The abundance of rats has resulted in some prisoners using them as currency, trading the captured animals for cigarettes or selling them as pets with makeshift leashes, the lawsuit said.

East Mississippi Correctional Facility houses some 1,500 inmates, almost all of whom are mentally ill, Fisher said. It is operated by Utah-based Management & Training Corporation, a private contractor that took over management of the prison last year.

As reported in this local article, headlined "California's death penalty on hold again," another California court has ruled that the state has failed to act appropriately in efforts to get its execution protocol in order. Here are the basics of the latest ruling and related California execution protocol developments:

California's death penalty system remains in limbo for the foreseeable
future, a state appeals court on Thursday scrapped the state's latest
attempt to update its lethal injection procedures. In a 28-page
ruling, the 1st District Court of Appeal found that state prison
officials failed to comply with administrative rules when crafting new
regulations more than two years ago. [This ruling can be accessed at this link.]

The unanimous decision of
the three-justice panel sends California back to the drawing board,
unless the Brown administration takes the case to the California Supreme
Court and keeps more than 700 Death Row inmates on an indefinite
reprieve. The appeals court upheld a Marin County judge, who faulted the prison department for a
variety of procedural missteps, including offering no public explanation
for why San Quentin officials opted to continue with a three-drug
lethal injection method instead of a single-drug execution option being
embraced by a number of other states.

State officials have
indicated in court papers they are exploring the single-drug option,
which involves putting condemned inmates to death with one dose of a
sedative. Ohio, Washington and Arizona are among the states that have
moved to that option to short circuit legal challenges to the three-drug
method....

Kent Scheidegger, legal director of the pro-death penalty Criminal
Justice Legal Foundation, said the
ruling was not surprising, although he disputed the court's finding
that violating the administrative rules justifies halting executions.
Switching to the single-drug method should thwart further legal
challenges to California's lethal injection procedures, he said.

However,
even if the Brown administration moves to single-drug executions,
prisons will again have to comply with the administrative procedures to
institute the new method, a process that can take more than a year. And
states across the country, including California, are struggling to
assemble supplies of execution drugs because of resistance from drug
manufacturers and other problems.

California has had a moratorium
on executions since 2006 as a result of legal challenges to its
execution procedures in both the state and federal courts. Death Row has
more than 725 inmates awaiting execution, including more than a dozen
who have exhausted their legal appeals and would be eligible for
immediate execution. Several of those inmates have mounted the
lethal-injection court challenges.

In response to a federal
judge's concerns, former Gov. Arnold Schwarzenegger and current Gov.
Jerry Brown have both tried to overhaul the state's lethal injections,
revising training for execution team members and building a new
execution facility at San Quentin. But the state's updates have been
blocked twice for violating the administrative code, for the most part
by failing to offer adequate public review of the proposed changes.

As highlighted in this prior post, there has been talk in California for more than three years about moving to a one-drug lethal injection protocol. I believe that talk has not turned into action in large part because there seem to be very few officials in California who are truly eager to move the state closer to being able to resume executions.

I am certain death penalty advocates will justifiably assail the foot-dragging we keep seeing from California officials concerning efforts to resume executions in the state. But I am also certain that fiscal conservatives could be praising the disaffinity of state officials to seek to resume executions. Because of the flurry of litigation in both state and federal court which every pending execution necessarily generates, Gov. Brown and other executive officials are probably saving the California taxpayers some money by letting condemned prisoners rot on the state's death row rather than trying aggressively to get the long line toward the execution chamber moving again.

A few older related posts about the litigation over lethal injection in California:

May 30, 2013

Non-prosecution deal worked out for Chuck Hagel's son on state marijuana charge

As reported in this Washington Post piece, the son of a notable political figure just managed to avoid pursuit of a criminal prosecution on minor marijuana charges. The piece is headlined "Chuck Hagel’s son, Ziller Hagel, has marijuana charges dismissed," and here are the details:

Ziller Hagel, the 20-year-old son of Defense Secretary Chuck Hagel, was in Fairfax County District Court Wednesday morning, where charges stemming from a marijuana arrest last year were dismissed, records show.

Hagel, who attends college in the Chicago area, was arrested on the misdemeanor charge last June, but his case was continued several times last year and earlier this year....

Nina J. Ginsberg, an attorney for Hagel, said the arrest happened after police officers spotted him in a parked car near a park area at night, listening to music by himself. “They searched his car and found a tiny amount of marijuana, but no evidence whatsoever that he had used it or where it came from,” she said. “We had a real issue of whether they could prove it was there and whether there was a legitimate right to search the car.”

Hagel was ready to fight the charges; instead, he worked out a deal with prosecutors to complete 100 hours of community service, after which charges could be dropped. Ginsberg said his first hearing last summer was deferred pending results of a lab test, others to give him more time to finish a community service project slowed by an illness.

Two weeks later, has there been any significant and noteworthy Blewett blowback?

As first discussed in this post and further here and here, a split panel of the Sixth Circuit two weeks ago handed down a significant (and questionable) ruling in US v. Blewett
declaring that the reduced mandatory minimum crack sentences set out in
the Fair Sentencing Act of 2010 must be applied even to those offenders
sentenced before the Act's effective date. This ruling means
that still-imprisoned crack defendants sentenced in the two decades before
the FSA can now seek a reduction in their mandatory minimum sentences
under the FSA's new terms, at least if they were originally sentenced in
the Sixth Circuit.

Right after the ruling there was reasonable and justified speculation that the federal prosecutors would quickly move for the full Sixth Circuit to review and reverse the Blewett decision en banc. Indeed, I expected that we a petition for rehearing en banc would be filed within a matter of days. But here it is nearly two weeks later, and I am still awaiting any report of a DOJ en banc filing in response to Blewett. I believe it is still likely that such a petition will be coming down the pike very soon, but the delay so far now has me wondering and speculating as to whether the feds might just decide to seek summary reversal of Blewett in the US Supreme Court rather than just fight this consequential fight in the Sixth Circuit.

Meanwhile, though I predicted in this post that there could be hundreds, if not thousand, of Blewett claims brought by incarcerated federal crack offenders convicted within the Sixth Circuit, as of this writing I have not seen any reports or evidence of significant efforts by significant numbers of defendants to get some relief from Blewett. I did find, thanks to Westlaw, a notable ruling by Judge Tarnow in the Eastern District of Michigan granting relief to a defendant based on Blewett in US v. Frost, No. 08–20537–4, 2013 WL 2250768 (ED Mich May 22, 2013), noting that Cecil Frost only now can get resentenced "because the Sixth Circuit Court's ruling in Blewett cures [the] unjust outcome" that precluded his resentencing because he had been sentenced before the effective date of the FSA.

It is hard to assess at this stage whether Frost represents the tip of a large Blewett-resentencing ice berg, or instead that Frost is a rare case involving a defendant and a district judge eager and able to operationalize Blewett quickly. The question in the title of this post is an effort to seek help from practioners and others to figure out whether and how Blewett blowback might be brewing.

Former Acting AG Jim Comey appears in line to be next head of FBI

As reported in this New York Times article, "President Obama plans to nominate James B. Comey, a former hedge fund executive who served as a senior Justice Department official under President George W. Bush, to replace Robert S. Mueller III as the director of the Federal Bureau of Investigation." Here is more from this article concerning what I consider to be a fine and shrewd pick by the President:

By choosing Mr. Comey, a Republican, Mr. Obama made a strong statement about bipartisanship at a time when he faces renewed criticism from Republicans in Congress and has had difficulty winning confirmation of some important nominees. At the same time, Mr. Comey’s role in one of the most dramatic episodes of the Bush administration — in which he refused to acquiesce to White House aides and reauthorize a program for eavesdropping without warrants when he was serving as acting attorney general — should make him an acceptable choice to Democrats.

It is not clear when Mr. Obama will announce the nomination. Senior F.B.I. officials have been concerned that if the president does not name a new director by the beginning of June, it will be difficult to get the nominee confirmed by the beginning of September, when Mr. Mueller by law must leave his post.

The White House declined to discuss Mr. Comey on Wednesday. But according to the two people briefed on the selection, Mr. Comey traveled from his home in Connecticut in early May to meet with the president at the White House to discuss the job. Shortly afterward, he was told that he was Mr. Obama’s choice, and they met again for a further discussion.

Mr. Comey, 52, was chosen for the position over the other finalist, Lisa O. Monaco, who has served as the White House’s top counterterrorism adviser since January. Some Democrats had feared that if the president nominated Ms. Monaco — who oversaw national security issues at the Justice Department during the attacks in Benghazi, Libya, last September — Republicans would use the confirmation process as a forum for criticism of the administration’s handling of the attack.

May 29, 2013

"Colorado governor signs recreational marijuana regulations into law"

Governor John Hickenlooper on Tuesday signed into law measures to regulate the recreational use of marijuana in Colorado, including blood-level limits for motorists and setting up a voter referendum to impose a tax on the non-medical sale of cannabis.

Colorado House of Representatives Assistant Majority Leader Dan Pabon said the legislation reflected the "will of the voters" who charged lawmakers with setting up the regulatory system after approving legalization in a vote last November.

One of the bills signed by Hickenlooper calls for a referendum in November on setting a 15 percent excise tax and an additional 10 percent sales tax on marijuana sales.

Other measures included in the legislative package are setting blood limits for driving while under the influence of marijuana at 5 nanograms per milliter, and limiting purchases of marijuana to non-Colorado residents at one-quarter of an ounce.

"The laws ... signed today put the health and safety of our kids front and center," said Pabon, a Democrat. "They drive a stake into the heart of a large black market while creating a regulated, legitimate industry."

House Republican leader Mark Waller, who sponsored the driving-under-the-influence legislation, said Colorado is in "new and foreign territory" in implementing its marijuana laws and it was vital to add a public safety component.
"Equipping law enforcement with the tools they need to ensure people make safe decisions behind the wheel is critical to maximizing public safety," he said.

"5 things about the controversy surrounding AG Eric Holder"

The title of this post is the headline of this new CNN article which does a nice job talking through the array of issues now swirling around the US Attorney General. Especially in the wake of this recent post (and some comments it engendered), these closing sentiments from the piece struck me as blog-worthy:

5. What happens now?

There will be more congressional hearings and investigations, more political rancor and the possibility of some fallout if further disclosures reveal Holder knowingly misled Congress or inappropriately concealed information.

His defiance in the face of the House contempt citation indicates Holder won't voluntarily step down unless pressured to do so by Obama, who has steadfastly maintained confidence in him.

The question will be whether Holder becomes a liability for the president.

If the multiple controversies (IRS targeting, Benghazi, reporters phone records) continue to dominate the political discussion, Obama could decide a drastic gesture is needed to try to move past a climate of crises. However, nothing at this point suggests that is imminent or under consideration.

May 28, 2013

In an interesting (and ground-breaking?) unanimous panel ruling that should make fans of Henry M. Hart and Herbert Wechsler smile, the DC Circuit today ruling that a crack defendant's civil rights lawsuit against the US Sentencing Commission could go forward. The notable ruling in Davis v. US Sentencing Commission, No. 11-5264 (DC Cir. May 28, 2013) (available here), gets started this way:

Appellant Brian Davis was sentenced to prison for crimes involving powder and crack cocaine before Congress and the Sentencing Commission took steps to reduce the disparity in sentencing ranges between the two. Unfortunately for Davis, these efforts were directed at crimes involving lesser amounts of cocaine than his. In a suit that seeks declaratory relief and possibly damages, Davis claims that these efforts violate the Equal Protection Clause because they do not reach his crimes. This appeal does not take up the merits of Davis’s claims, but their form. The district court dismissed his suit on the ground that the only relief available to Davis is in habeas. For the reasons set forth below, we reverse.

I nearly fell out of my desk chair when I read the last word of the last line of this opening paragraph, and the rest of the opinion surprised me as well. In order to reach its conclusion, the DC Circuit panel (1) had to reverse an established circuit precedent based on intervening Supreme Court rulings and also (2) had to rule that the district court erred when concluding the claim made by Davis against the USSC was “patently insubstantial.”

In the end, because Davis v. USSC is a narrow procedural ruling, it still remains very unlikely Davis will ultimately prevail in his suit, and I also doubt that this ruling today by the DC Circuit will prove to be all that consequential. Nevertheless, I think for Fed Court fans, as well as sentencing fans, the opinion in Davis v. USSC is today's must-read.

"Not Just Kid Stuff? Extending Graham and Miller to Adults"

The title of this post is the title of this notable new article by Michael O'Hear available now via SSRN. Here is the abstract:

The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are in widespread use or otherwise seem to reflect deliberate, majoritarian decisionmaking.

This Essay thus suggests a balancing test of sorts that may help to account for the Court’s varied Eighth Amendment decisions in noncapital cases since 1991. The Essay concludes by considering how this balancing approach might apply to the mandatory LWOP sentence established by 21 U.S.C. §841(b)(1)(A) for repeat drug offenders.

By 12-4 vote, Sixth Circuit affirms federal death sentence for Michigan murder in national forest

Today via a lengthy en banc ruling, the Sixth Circuit affirmed a federal death sentence against various challenges in US v. Gabrion, No. 02-1386 (6th Cir. May 28, 2013) (available here). Here is the break-down of the votes among the 16 circuit judges involved:

Marvin Gabrion was scheduled to be tried in Michigan state court for a rape charge on June 5, 1997. But that trial never happened. Two days before the trial was set to begin, Gabrion abducted Rachel Timmerman — the 19-year-old woman he allegedly raped — and took her to a remote location in the Manistee National Forest, bound and gagged her and weighed her down with concrete blocks, put her in an old metal boat, and then threw her overboard, alive, into a shallow, weedy lake, where she drowned. Gabrion also abducted and killed Timmerman’s infant daughter.

Timmerman’s murder was a federal offense because it occurred in a National Forest. See 18 U.S.C. § 1111(b). A federal jury later convicted Gabrion of murder and recommended that he be sentenced to death. The district court sentenced him accordingly. Gabrion now challenges his conviction and sentence on numerous grounds. We reject all of his arguments, and affirm.

Two notable 5-4 AEDPA rulings, both in favor of habeas defendants, from SCOTUS

Though surely disappointing to all civil lawyers, today the Supreme Court issued only two criminal justice opinions. Here is an abridged account from the SCOTUSblog coverage of today's rulings:

[1]Trevino v. Thaler. Opinion by Breyer, but in his absence it is being announced by Kennedy. Fifth Circuit is vacated and remanded. Vote appears to be 5-4.

Holding: When as here a state's procedural framework by reason of its design and operation makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise an ineffective assistance claim on direct appeal, the exception recognized in Martinez v. Ryan applies. (It is an exception to the procedural bar rule.) The Chief dissents, joined by Alito; Scalia wrote a dissent, joined by Thomas....

Comment From Peter Goldberger: Trevino is an important win for capital post-conviction petitioners in Texas, Louisiana and Mississippi....

[2] Justice Ginsburg has second opinion, in McQuiggin v. Perkins. Sixth Circuit is vacated and remanded. The opinion is 5-4. So much for unanimity....

Holding: Actual innocence if proved serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar or expiration of the AEDPA statute of limitations, as in this case.... Scalia dissents, joined by the Chief and Thomas and in part by Justice Alito.

In other words, a big day for habeas defendants thanks to the four Democratic-appointed Justices plus criminal-justice swinger Justice Kennedy. And thanks to these rulings, I think it is time to come up with a new name for what AEDPA really now means — perhaps something like Another Equitable Death Penalty Allowance (though I bet readers can do better).

Thanks to SCOTUSblog, I see that the Supreme Court has started the short week with a cert grant of note concerning federal criminal law and a sentencing issue whicj has split the circuits. The grant is in Rosemond v. United States (SCOTUSblog page here), and here is how the folks at SCOTUSblog describe the issue now to be resolved by the Justices (in its next Term):

Whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits.

"How America Learned to Stop Worrying and Love Marijuana"

The title of this post is not only an homage to one of the greatest movies of all time, but also the headline of this new Time magazine piece by reporter Christopher Matthews. (Among other enjoyable aspects of starting to think about Dr. Strangelove in this context, I wonder if the good doctor might well have been better able to deal with his alien hand syndrome problems with the help of high quality medical marijuana.) Though I suspect some Americans may now still fear marijuana reform as much as they once feared "The Bomb," here are excerpts from the Time piece explaining why many have stopped worrying so much about the wicked weed:

For nearly a century, the United States has been one of the fiercest advocates and practitioners of marijuana prohibition in the world. At the height of the America’s anti-pot fervor in the 1950s and ’60s, one could even receive life imprisonment for simple possession of the drug.

But the puritanical fervor that once dominated the national discussion surrounding cannabis has been conspicuously absent of late. Earlier this month, the Colorado State legislature, by order of a November referendum, passed bills to implement the legalization and regulation of recreational marijuana use. Washington State voters also approved legalization by referendum on election day.... The Organization for American States recently suggested that marijuana legalization could be a way to cut down on drug-violence in the western hemisphere. Perhaps most important, the movement has finally found a voice on Capitol Hill, as representatives Earl Blumenauer and Jared Polis submitted legislation earlier this year that would end federal prohibition of the drug, and allow states to tax and regulate it as they see fit....

Indeed, the feeling that the further liberalization of marijuana laws is inevitable is backed up by the polling trends. According to Gallup, as recently as 2005, two-thirds of Americans opposed legalization of marijuana. Now 48% percent of the population supports it. And a similar poll from Pew puts the number even higher — at 52%. But what exactly explains this sudden change in American attitudes towards pot?

Undoubtedly, part of the reason for the increased acceptance is demographic. It might make you feel old to read this, but on Friday, both Bob Dylan and Tommy Chong celebrated birthdays, turning 72 and 74 respectively. The aging of these counterculture icons hasn’t directly changed American attitudes towards marijuana, of course, but it does underscore the fact that the vast majority of Americans living today came of age during a time when marijuana was widely in use....

And while national political leaders aren’t necessarily falling over themselves to endorse marijuana legalization, there isn’t a lot of room in the current political climate to defend it, either. The political right has done an excellent job over the past thirty years convincing the American public of the limitations of government. They have argued that even when the government has the best of intentions it can be astoundingly ineffective at achieving its stated goals, and often creates unintended and pernicious consequences to boot. This is the same argument that has led to deregulation of industry, historically low tax rates, and legislative efforts like welfare reform. It’s only logical to extend it beyond social welfare programs to something like drug policy.

And supporters of ending marijuana prohibition do indeed point to the unintended consequences of the policy as reason to legalize. According to the FBI, in 2011, 1.5 million people were arrested on drug charges, and roughly half of those were for marijuana, costing billions per year in law enforcement and court costs. And that doesn’t count the human toll on those arrested, like potential loss of work, government benefits, the right to vote, and student aid. Meanwhile, the government simply hasn’t come anywhere close to achieving the stated goal of marijuana prohibition, which is to prevent drug addiction. According to the National Survey on Drug Use and Health, since the beginning of the so-called war on drugs, the addiction rate in America has remained steady at 1.3%, despite the fact that each year state and local governments spend more and more money — over $1 trillion in total — fighting the drug war.

What’s more, the unintended consequences of marijuana prohibition do not stop at our borders. In fact, the brunt of the side effects may be being felt in places like Mexico....

We are in a political moment where social conservatism has been somewhat sidelined as a political force by the growing influence of libertarianism in the Republican party. This dynamic emphasizes the tension between liberty and morality that has been with us since the founding of our country, and at this moment liberty appears to be ascendant. But make no mistake, the puritanical impulses that once made America the leading voice in marijuana prohibition haven’t gone anywhere — and advocates of reform should know that pendulums, once set it motion, swing back again.

May 27, 2013

Lea Johnston here again. In my first
guest blog, I discussed the mental health findings of a recent Department
of Justice report on sexual victimization in prisons and jails in 2011-12. In a
nutshell, the report found that inmates with current symptoms of serious psychological
distress — and those who had received diagnoses of, or treatment for, mental
health problems — reported rates of sexual victimization that were 1.6 to 9
times higher than those experienced by other inmates. Thus, mental disorder is
a potent risk factor for sexual victimization in correctional facilities.

This guest blog will explore the sentencing ramifications of
these findings. In the interest of full disclosure, my recent
work — inspired by the important contributions of Professors David
Enoch, Adam
Kolber, and others — takes the position that the state has the moral
obligation to factor foreseeable, substantial risks of serious harm,
proximately caused by the state, into sentencing.

A number of states and the federal government (to some
extent) recognize vulnerability or excessive offender hardship as a mitigating
factor for purposes of sentencing. Many state statutes frame the mitigating
factor in general, source-neutral terms (i.e., whether “the imprisonment of the defendant would
entail excessive hardship to the defendant”), while other states only
consider hardship from certain sources, such as an “obvious
and substantial mental or physical impairment or infirmity.”

Under these statutes, an offender’s likely hardship in
prison may affect his sentence in one of two ways. First, his vulnerability to
harm may militate towards a suspended sentence of incarceration with probation.
Some offenders will not qualify for probation, however, given the seriousness
of their crime, their criminal history, or the threat they pose to the public
if released.

Second, some jurisdictions allow sentencing discounts, in
the form of shorter prison terms, for the anticipated severity of a vulnerable
offender’s sentence. Sentencing discounts cohere with the equal-impact
principle, articulated by Professors
Andrew von Hirsch and Andrew Ashworth, among others. The equal-impact
principle acknowledges the foreseeable, typical, and serious side-effects that penalties
like incarceration hold for vulnerable populations and seeks to adjust
sanctions so that members of vulnerable classes receive penalties of roughly
equivalent severity as non-vulnerable individuals. Applying this theory, scholars
have suggested that reduced terms of incarceration would be appropriate to
effectuate proportionate punishment for mentally ill individuals, the
physically disabled, and the elderly.

However, shortening a prison sentence on the basis of
anticipated harm would only be morally permissible if a legitimate aim of
punishment could justify that anticipated harm. For instance, as Professor Mary
Sigler has argued in this article,
courts that grant reduced prison sentences for vulnerability to sexual assault
may, in practice, be sentencing those individuals to prison terms “at rape.”
Since sexual victimization can never be justified, a sentencing judge should
not predicate a discounted term of confinement on its occurrence.

So then how can a judge, mindful of an offender’s
vulnerability to serious harm if incarcerated, structure a just sentence that
will avoid the foreseeable (and unjust) harm to the offender, when the offender’s
crime calls for a term of confinement? Judges today have few options.

As I have argued in this new working
paper, legislatures should consider authorizing judges to tailor conditions
of confinement to ensure that the sentences imposed are humane and to effectuate
the purposes of sentencing. Conditions of confinement, as long as they surpass
constitutional minima, are typically the province of prison authorities.
However, legislatures have delegated the placement of prisoners to courts in
the past and possess the inherent authority to provide for the proper care and
treatment of inmates. Recognizing the unique needs and obvious harms that
incarceration poses to some mentally ill offenders, legislatures could
authorize courts to identify offenders in need of special treatment in prison
and even tailor their conditions of confinement to meet these needs.

A number of possibilities for
tailoring conditions of confinement are possible, each infringing on correctional
affairs to a different degree and carrying varying efficiency benefits. For
instance, evidence suggests that correctional
authorities fail to detect some inmates’ mental disorders, resulting in a
withholding of treatment and perhaps placement in an inappropriate environment.
As a partial remedy to this problem, judges could designate seriously
disordered individuals as presumptively in need of treatment, or require
comprehensive mental health evaluations by qualified mental health
professionals at intake. More intrusive options could include disqualifying
facilities particularly likely to exacerbate an individual’s disorder as
potential sites of confinement, designating facilities with certain treatment
or protective options, and mandating that offenders receive — or not receive — certain
treatment in prison.

Again, the goal of such conditions would be to mitigate the
risks of serious harm that prison poses to a particular vulnerable offender,
rendering the term of incarceration a humane and just response to the
offender’s criminal act.

Though I have not be following too closely the various scandals consuming the Obama Administration these days, a Fox News headline about one of them got me thinking about the question in the title of this post. This recent Fox News story is headlined "DOJ acknowledges Holder on board with warrant for Fox reporter's emails," and here are excerpts:

The Justice Department acknowledged late Friday that Attorney General Eric Holder was on board with a search warrant to obtain the personal emails of a Fox News reporter, as media and civil liberties groups continued to raise concerns about the case.

Following prior reports indicating that Holder had likely signed off on the search warrant, the Justice Department acknowledged Holder's involvement and defended the decision. It insisted the call to seek these files -- in the course of an investigation into a leak allegedly made by State Department contractor Stephen Jin-Woo Kim -- was legal.

"The Department takes seriously the First Amendment right to freedom of the press," the department said in a written statement, provided late Friday at the start of the holiday weekend. "In recognition of this, the Department took great care in deciding that a search warrant was necessary in the Kim matter, vetting the decision at the highest levels of the Department, including discussions with the Attorney General."...

President Obama directly addressed these complaints for the first time on Thursday, announcing a review of DOJ policies on investigations that involve reporters.
"I've raised these issues with the attorney general, who shares my concern," Obama said, adding that Holder would report back by July 12.
The acknowledgement, however, that Holder was involved in the search warrant decision raised additional questions about whether the attorney general's review of his own actions would be impartial.

Attorney Jesselyn Radack, who works with the Government Accountability Project and has represented accused leakers, told FoxNews.com she's not convinced by the administration's latest effort.
"I don't think there needs to be a review of the internal guidelines. ... There needs to be a review of why they weren't followed," she said, adding Holder appears to have a "conflict of interest" in the review.

But Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press, said his group was "encouraged to hear" the review was initiated.
He told FoxNews.com on Friday that the country still needs a national media shield law -- something the DOJ agreed with in its statement Friday.

Beyond the peculiar notion of AG Holder investigating a matter in which he is accused of wrong-doing, I must admit to a broader sense of Holder fatigue and a deep concern that the combination of persistent political opposition and many (mini?) scandals now necessarily means he is a diminished leader and administrator of the US Department of Justice. Notably, many major figures in the Obama first-term cabinet have moved on, and yet AG Holder remains despite the fact that he has been, arguably, the most controversial member of the Obama cabinet.

Among the reasons I would like to see AG Holder move on is because there is an impressive list of Democratic state AGs who might be tapped to bring fresh energy and ideas to the US Justice Department. Personally, I would love to see a woman with some serious state-level experience --- e.g., Martha Coakley from Massachusetts, or Kamila Harris from California, or Lisa Madigan from Illinois --- now in the role of US Attorney General. Among other benefits, a current state AG placed now in the US AG role could and likely would be able to advise Prez Obama and his team how best to get the feds out of a lot of criminal justice areas best left to the states (e.g., marijuana reform/regulation).

May 26, 2013

AP reporter Andrew Welsh-Huggins has this effective new article
discussing the possibility and challenges of a capital prosecution in
the horrific Cleveland kidnapping case. Here are excerpts from the
piece:

A prosecutor faces numerous obstacles as he weighs whether to bring
death penalty charges against a man accused of kidnapping three women
and forcing one of them into miscarriages through starvation and
beatings, capital punishment experts say.

Most agree that such charges are possible against Ariel Castro,
though not without legal fights starting with constitutional questions
over the definition of a murder victim for the purposes of a death
penalty case.

Cuyahoga County prosecutor Tim McGinty said at a news conference
on May 9, days after the women were rescued from Castro's run-down
home, that capital punishment "must be reserved for those crimes that
are truly the worst examples of human conduct."

"The law of Ohio calls for the death penalty for those most
depraved criminals, who commit aggravated murder during the course of a
kidnapping," he added....

Castro, 52, is accused of kidnapping the three women when they
were in their teens or early 20s and holding them in his Cleveland house
for about a decade, chaining them in a basement initially and then
allowing them into upstairs bedrooms.

One of the women, Michelle Knight, told investigators Castro
beat and starved her to force five miscarriages, according to initial
police reports of the women's captivity....

One of the closest precedents to the Castro case is the 2005 Texas
prosecution of Gerardo Flores, sentenced to life in prison under the
state's fetal protection law after being convicted of stepping on his
pregnant girlfriend's stomach and causing the deaths of their unborn
twin sons. Flores had argued that his girlfriend wanted an abortion so
he hesitantly agreed to press his 175-pound frame on her belly....

Ohio enacted a fetal homicide law in 1996, making it illegal to
kill or injure a viable fetus. That law and similar laws in the 37 other
states with fetal homicide statutes have been used mainly to win
convictions in car crashes in which pregnant women died and in cases
involving attacks on expectant mothers.

In 2011, a Franklin County man charged under Ohio's fetal
homicide law was sentenced to 13 years in prison for taking his pregnant
girlfriend to an abortion clinic at gunpoint.
In 2008, a Stark County jury convicted former police officer Bobby
Cutts of killing his pregnant lover and their nearly full-term unborn
daughter but gave him life in prison instead of a death sentence....

Earlier this month in Pennsylvania, an abortion doctor convicted of
killing babies born alive at his clinic avoided a possible death
sentence by waiving his right to appeal in exchange for a sentence of
life without parole.
Prosecutors argued that Dr. Kermit Gosnell killed the babies after they
were born, not as fetuses. Gosnell argued that none of the fetuses was
born alive and that any movements they made were posthumous twitching or
spasms.

In 2008, the U.S. Supreme Court banned the death penalty for child
rapes in which a death didn't occur, spelling out that a killing is the
only crime eligible for the death penalty outside of a crime against the
state such as treason.

A death penalty case against Castro "would raise serious legal
questions about whether a murder has occurred and whether such a death
sentence complies" with the court's 2008 ruling, Richard Dieter,
executive director of the Washington, D.C.-based Death Penalty
Information Center, which opposes capital punishment, said in an email.

It's not unheard of for prosecutors to seek capital charges even
when a body hasn't been located. But the Castro case brings up another
layer of difficulty given that no human remains of any kind have been
found on his property.
"How does the prosecution prove a pregnancy? How do you prove that
Castro caused the termination of the pregnancy?" said Michael Benza, a
Case Western University law professor who has also represented death row
clients....

The nature of the crime makes it likely that, death penalty or
not, Castro would face a life sentence if convicted on rape charges
alone, said Hofstra University law professor and death penalty expert
Eric M. Freedman.
"The odds that it's going to go to a death penalty trial and result in a
jury verdict of death," he said, "are vanishingly small."